Professional Documents
Culture Documents
United States Court of Appeals: Unpublished
United States Court of Appeals: Unpublished
United States Court of Appeals: Unpublished
v.
GORDON R. ENGLAND, Secretary of
the Navy,
Defendant-Appellant,
No. 02-2416
and
RICHARD DANZIG,
Defendant.
v.
GORDON R. ENGLAND, Secretary of
the Navy,
Defendant-Appellee,
No. 02-2439
and
RICHARD DANZIG,
Defendant.
BHELLA v. ENGLAND
COUNSEL
ARGUED: John Harris Douglas, Assistant United States Attorney,
Charleston, South Carolina, for Appellant. Anthony Christopher
Potts, HITCHCOCK & POTTS, Charleston, South Carolina, for
Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States Attorney, Charleston, South Carolina, for Appellant.
OPINION
PER CURIAM:
In this Title VII case involving claims of race and national origin
discrimination, the jury awarded plaintiff Surjit Bhella $1,500,000
(later reduced by the district court) on her hostile environment claim
asserted against the Secretary of the Navy. The government appeals,
challenging the district courts denial of its motion for judgment as a
matter of law. Bhella cross-appeals, challenging the district courts
refusal to submit her retaliation claim to the jury. We conclude that
the evidence was insufficient to establish that Bhella was subjected to
an objectively hostile work environment, and we therefore reverse the
districts court denial of the governments motion for judgment as a
matter of law. On Bhellas cross-appeal, we conclude that the district
court erred by granting the governments motion for judgment as a
matter of law as to the retaliation claim, and we therefore remand for
a new trial on that claim alone.
BHELLA v. ENGLAND
I.
The evidence presented at trial established the following facts,
which we recount in the light most favorable to Bhella, giving her the
benefit of all inferences that reasonably can be drawn from the evidence. See, e.g., Private Mortgage Inv. Servs., Inc. v. Hotel & Club
Assocs., Inc., 296 F.3d 308, 311-12 (4th Cir. 2002); Anderson v. Russell, 247 F.3d 125, 129 (4th Cir. 2001). Where important, however,
we also note the governments contrary view of the evidence presented at trial.
A.
Surjit Bhella was born in India, where she received a university
degree in education and served as a teacher and school principal.
Bhella moved with her husband to the United States in 1969. Bhella
continued her education in this country, obtaining masters and doctorate degrees in education, with an emphasis on counseling. Bhella
thereafter held various jobs, including coordinator of the Student
Improvement Program at Iowa State University, director of the Education Department at Lincoln Trade College in Indiana, and executive
director of the Southeastern Illinois Mental Health Agency. In 1986,
Bhella and her family moved to Charleston, South Carolina. Bhella
first worked at Baker Hospital, running the hospitals counseling program, and then later went to work for the Veterans Administration.
After twice applying for a position, Bhella was hired in January 1989
as a civilian employee at the Naval Consolidated Brig that was then
under construction in Charleston.
The Brig houses military prisoners. As part of its mission to rehabilitate its prisoners, the Brig offers various classes and counseling
services. Bhella served as the Brigs education supervisor and oversaw the work of four instructors. In 1990, Bhella took on additional
duties as the "program evaluator." As the program evaluator, Bhella
conducted surveys among the prisoners while they were housed at the
Brig and after they were released, entered the raw information
obtained through the surveys into a computer program to turn the
information into usable data, and then analyzed the data to help determine the effectiveness of the programs being provided by the Brig.
BHELLA v. ENGLAND
Before Bhella took on the program evaluator duties, no one was performing that function at the Brig.
The Brig is headed by a Commanding Officer ("CO"); directly
beneath the CO in the Brigs organizational structure is the Executive
Officer ("XO"). The CO reports to a Washington-based division of
the Bureau of Navy Personnel referred to as Personnel Office 84
("Pers84"), which also supervises the operation of a sister brig in California (the "Miramar brig"). Pers84 has the authority to make decisions affecting Brig personnel, including "influence over what jobs
would be deleted or removed . . . in a downsizing situation." J.A. 296.
When Bhella was hired at the Brig, Guy Campbell was the CO.
Campbell was replaced by Michael Ralston in April 1991, who was
in turn replaced by Anne Bushong in 1993. From February 1993 until
October 1994, Willard Dixon was the Brigs XO. He was followed in
that position by Wendy Gee. For all time periods relevant to this
appeal, Bill Peck headed Pers84. In her duties as education supervisor, Bhella reported directly to the CO. As program evaluator, Bhella
reported to Michael Rucker, the Brigs Correctional Programs Officer.
Bhella had a positive working relationship with COs Campbell and
Ralston. Campbell testified that Bhella was "an exceptional
employee," that he "was very taken with her performance," and that
she had his "complete confidence." Supp. J.A. 8-9. Ralston had similar praise for Bhella, stating that he "found her to be exceptionally
professional and productive and generally outstanding." J.A. 283.
Bhellas relationship with Michael Rucker and a few other superiors,
however, was not as positive, as even CO Ralston recognized. Ralston
testified that Bhellas other superiors criticized Bhella for "causing
trouble" and described her as a "constant complainer" who had "difficulty managing her people." J.A. 284. Ralston did not believe the
complaints to be valid, in part because of the exceptional performance
of Bhellas Education Department, which he viewed as "an indicator
that somebodys doing something right." J.A. 284.
On May 29, 1993, Bhella filed a complaint with the Brigs EEO
office alleging various claims of discrimination. Rucker learned of the
complaint on June 7, 1993, during a meeting with the EEO counselor.
BHELLA v. ENGLAND
On June 18, 1993, CO Ralstons tour of duty with the Brig ended, and
he was replaced as CO by Anne Bushong.
In late June, Bushong and Rucker asked Bhella to withdraw her
EEO complaint. Bhella refused. Around the same time, Rucker
refused to allow Bhella to attend an educational conference that Ralston had authorized Bhella to attend before he left the Brig. Rucker
and then-XO Dixon also informed Bhella that she no longer needed
to attend the weekly senior staff meetings that she had been attending
for more than three years.
In September, the Brig, without any prior discussions with Bhella,
reassigned some of Bhellas duties (developing college programs) to
Rucker and another Brig official. See J.A. 66. Later that month,
Rucker upgraded the ratings Bhella had assigned to two of her subordinates during their annual performance review. Bhella had rated the
employees at level four (excellent). The employees complained to
Rucker, who without input from Bhella raised the ratings to level five
(outstanding), even though Rucker had approved of Bhellas initial
rating of the employees. Rucker thereafter evaluated Bhella and rated
her at level three (fully successful), the lowest rating Bhella had ever
received during her tenure at the Brig, and the lowest rating for that
period of any civilian employee at the Brig. Bhella complained to
Rucker about the rating, but he refused to change it.
On Friday, October 15, 1993, Bhella was asked to attend a meeting
in XO Dixons office, a meeting also attended by Rucker. At the
meeting, Bhella learned that her position as education supervisor was
being eliminated and that, effective October 18, she was being
detailed for 120 days to the Clinical Services Department to assist the
director of that department. Bhella had no prior knowledge that the
Brig was contemplating a job change, and the Brig gave Bhella no
reason for the change except to say that she was needed by the director of Clinical Services.
Lieutenant Colonel William Wall, the director of the Clinical Services Department, testified that he learned about Bhellas transfer
only a few days before Bhella did, in a meeting with CO Bushong and
XO Dixon. Wall testified that CO Bushong told him that Bhella was
being transferred to his department because "it would be a great fit."
BHELLA v. ENGLAND
J.A. 392. Wall testified that he did not request the transfer, was not
consulted about the transfer, and had no specific need for Bhella in
his department. Sanford Seymour, director of the Brigs Correctional
Services department, testified that CO Bushong told him that Bhella
was transferred to the Clinical Services department "as a resolution"
of Bhellas EEO complaints. See J.A. 487.
Once detailed to Clinical Services, Bhella had no supervisory
responsibilities, no position description, and no job title. She was
expected to complete the program evaluation research project she had
been conducting, but she was given no other specific duties or responsibilities. The letter (written by XO Dixon) detailing Bhella to Clinical Services indicated that Bhella was to assist Wall "in conducting
research activities." J.A. 577. The letter explained that Bhellas
performance in fulfilling similar duties in the past indicates
to me that your professional expertise can best be used by
the command in this position. The importance of validating
and evaluating the effectiveness of the various Brig programs and conducting follow-up studies will be essential to
the future creditability of [the Brig].
J.A. 577. Dixons letter stated that Bhellas duties would be "undescribed" upon assignment, but that "[d]uring this detail, duties will
naturally develop and you should define the duties more clearly and
in greater detail. Ultimately, you should be able to write a position
description which can then be classified." J.A. 577.
During her time in the Clinical Services department, Bhella repeatedly asked Wall for assignments. His responses to those requests were
fairly vaguehe would tell Bhella that the CO had not yet decided
on duties for Bhella, or that "he w[ould] think about it and get back
to [Bhella]." J.A. 84. Bhella asked Wall if she could create her own
position description (as the detail letter indicated she should do), but
Wall told her that he would write the position description. Bhella also
provided Wall with lists of projects and responsibilities that she
believed she was qualified to perform, but she was permitted to
undertake very few of the requested assignments. Unhappy with the
detail to Clinical Services and the loss of her supervisory responsibili-
BHELLA v. ENGLAND
ties, Bhella in November 1993 filed a second and then a third EEO
complaint.
The government contends that the elimination of Bhellas position
and her transfer to Clinical Services was required by an "efficiency
review" that the Brig underwent beginning in 1992. A report issued
in September 1993 in connection with the efficiency review recommended the elimination of the Education Supervisor position, a recommendation also made with regard to the Miramar brig. The order
to implement the recommendations of the efficiency review, however,
did not come until April 1994, six months after Bhella was detailed
to Clinical Services.
In May 1994, Bhella was finally given additional work to do
program evaluation functions similar to those she had performed
while she was Education Supervisor. To properly carry out these
duties, Bhella needed upgraded computer software, training for the
new software, and an administrative assistant to help with the data
entry. Between May and October 1994, Bhella made repeated
requests for these items, but she received only sporadic, part-time data
entry help. Her other requests were not granted.
In September 1994, Wendy Gee replaced Dixon as the Brigs XO,
and by October 1994, Gee had learned of the EEO complaints filed
by Bhella. Also in October, Gee moved Bhella from Clinical Services
and placed her under Gees direct supervision.
Bhella suffered from various medical problems during the time she
worked at the Brig, including depression, back problems, chronic
fatigue, and fibromyalgia. Her depression began worsening as the situation at work deteriorated. By early December 1994, Bhellas
depression was severe enough that her doctor recommended she be
hospitalized. Bhella provided Gee with a note from her doctor and
requested that Gee keep confidential the reason for her absence.
Bhella was hospitalized for approximately two weeks. When she
returned to work on December 19, 1994, Bhella gave Gee a note from
her doctor indicating that she was fit to return to work. Bhella quickly
realized that Gee had not honored her request for confidentiality,
because many Brig employees asked her about her hospitalization.
Bhella felt humiliated, and she was unable to work on December 20
BHELLA v. ENGLAND
and 21. On Christmas Eve, Bhella received a memo from Gee ordering her to "[i]mmediately provide this command with certification
from your treating physician that you have been released to return to
full duty." J.A. 626. The memo required that the medical certification
"specify factors which you do not meet or duties which you cannot
perform or can perform with limitations." J.A. 626. The memo stated
that "[f]ailure to provide the required medical statement may be
grounds for disciplinary action." J.A. 627. Although she believed that
she had already provided the Brig with the necessary information,
Bhella complied with Gees directive.
On December 28, 1994, Bhella requested 240 hours of advanced
sick leave so that she could participate in a four-week pain rehabilitation treatment program. Gee denied the request, noting that the policy
for advanced sick leave required that all accumulated sick leave first
be exhausted. When Bhella requested the leave, she had only four
hours of accumulated sick leave. On January 27, 1995, Bhella sent a
letter to the Navy Inspector General and the personnel section in
Washington complaining of harassment and discrimination by Gee
and others. On February 1, 1995, Bhella filed another EEO complaint.
In February 1995, Bhella attended a conference in Washington,
D.C. The program evaluator at the Miramar brig also attended the
conference, and he told Bhella that she was going to be transferred to
California to work with him. Bhella was surprised by this information, and over the course of the next month she had several conversations with Gee about it. During one such conversation, Gee "was very
loud, very abusive," and called Bhella a liar. J.A. 142. On March 28,
1995, Bhella sent a letter complaining of harassment to the Defense
Hotline at the Pentagon and to the Chief of Naval Personnel.
Steven Batts, who worked in the Brigs Correctional Services
department, testified that at a staff meeting in March 1995, Gee was
very upset about the complaints that Bhella had filed. According to
Batts, Gee "made [it] clear . . . that we were not to have any contact
with Dr. Bhella or assist her in any way." J.A. 356. Batts testified that
Gee "was clearly infuriated about the fact that Dr. Bhella filed the
complaint. It was one of the things that I remember, is how dare her
file a complaint." J.A. 356-57. According to Batts, Gee thereafter
issued an order to search Bhellas office "for anything that would dis-
BHELLA v. ENGLAND
close what the IG complaint was about, what she was working on,
anything related to any notes that might help shed light on what Dr.
Bhella was working on." J.A. 358. There is no dispute that on March
30, Gee ordered Steve Morrison, head of Brig security, to search
Bhellas office and conduct an investigation of Bhella. The government, however, contends that the investigation was triggered by questions about Bhellas timekeeping practices that were brought to the
attention of the command by a Brig employee.
On April 12, 1995, Morrison submitted to Gee a report summarizing the results of his investigation. Morrisons report listed various
offenses that he believed Bhella had committed, including attending
a seminar during work hours on March 23 without permission and falsifying her time card for that day. That same day, Gee sent to Bhella
(who was at home on sick leave) a letter notifying her that the Brig
was proposing to terminate Bhella and listing five specific infractions
the Brig believed Bhella had committed. The offenses described by
Gee in her letter included two charges of unauthorized absence.
According to the letter, the first unauthorized absence occurred on
February 16, when Bhella returned a day early from a conference but
did not report to work, and the second unauthorized absence occurred
on March 23, when Bhella attended a local workshop without permission. The letter also charged Bhella with failing to attend certain mandatory monthly training sessions and with repeatedly filling out leave
slips incorrectly, despite being counseled on the correct way to fill out
the slips. Finally, the letter charged Bhella with "abusively" requiring
a Brig employee to change Bhellas time sheet to reflect annual leave
instead of sick leave. J.A. 648.
The letter gave Bhella an opportunity to respond to the charges and
stated that, if the Brig determined that removal was warranted, the
proposed removal would be effective no earlier than thirty days from
the date of the letter. Under Navy regulations, employees under a proposed removal from duty typically remain at work in their usual positions during the notice and response period. However, if the employee
poses a threat to herself or others, the employee may be removed
from duty (without any loss of pay) during the notice period. Gees
letter of proposed removal informed Bhella that she was excused from
duty with pay until the matter was resolved and explained that Bhella
was "prohibited from entering the Brig facilities except as noted. I
10
BHELLA v. ENGLAND
have arranged for you to be escorted in the Brig to retrieve your personal belongings on 17 April 1995 between the hours of 0800-1130."
J.A. 649. As instructed by the letter, Bhella returned to the Brig on
April 17 to retrieve her belongings. She was escorted to her office by
two Brig employees, who watched while she packed, escorted her
back to her car, and then demanded her identification card. At trial,
Bhella described that experience as the "most humiliating experience
in [her] life." J.A. 153.
Sometime after she retrieved her office belongings, Bhella submitted her response to the proposed removal. In her response, Bhella was
able to largely refute each of the charges leveled against her. For
example, as to the unauthorized absence on February 16, Bhella presented a note submitted to and signed by XO Gee dated February 10.
The note stated: "As we discussed on 8 Feb that I plan to catch a late
flight on 2-15-95. If it works I will stay home on 2-16-95. However
with your approval I listed 2-16-95 as travel day." J.A. 650. As to the
unauthorized absence on March 23, Bhella submitted a copy of a flyer
advertising the seminar upon which Bhella had written a note asking
for permission to attend. Gee approved the request, signing off on the
flyer that Bhella had given her and on the formal travel authorization
form. As to the training sessions, Bhella submitted logs showing that
she had signed out and viewed the videotape of each training session
in question, which was an authorized way of completing the mandatory training. The Brig rescinded the proposed removal once it
reviewed Bhellas response.
Bhella returned to work on May 11, 1995. The next day, she
received a memo from Gee stating that "there will be a major shift in
focus of your duties from primarily supporting Pers-84s Navy Corrections Evaluation Program to supporting evaluation within the
Brig." J.A. 663. Bhella lost most of her responsibilities with regard
to the Navy Corrections Evaluation Program, which had involved
receiving and analyzing evaluation data from brigs on the East Coast,
making regular visits to those brigs, and attending conferences in
Washington, D.C. The memo detailed the new duties that Bhella
would be taking on, which included revising exit questionnaires and
evaluating various programs within the Brig. Bhella viewed her new
assignments as being primarily clerical in nature, and she testified that
people at work were "very hostile. Very cold." J.A. 175. Although
BHELLA v. ENGLAND
11
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BHELLA v. ENGLAND
the leave form the box indicating that she was sick as well as the box
indicating that she had been injured on the job. Bhella also included
comments on the leave formswriting "depression" beside the
checked-off sickness box, J.A. 622, and once noting that leave was
required "due to the hostile environment at work," J.A. 646. Gee
always granted the requested leave, but she apparently took issue with
the way Bhella filled out the forms. For example, Gee struck through
Bhellas "depression" notation and wrote "please bring doctors slip to
clarify." J.A. 622. Beside Bhellas hostile environment comment Gee
inserted the words "vague" and "unsubstantiated." J.A. 646. These
incidents formed the basis of one of the charges included in the April
1995 notice of proposed removal. The Brig ultimately determined that
there was nothing improper about the way Bhella had filled out the
slips, but that Gee had violated Brig policy by striking through Bhellas entries.
B.
Bhella also presented evidence of various comments made to and
about her by Brig officials. In 1990, not long after she was hired at
the Brig, Bhella asked Rucker why, given her qualifications and experience, she was forced to apply for her position twice. According to
Bhella, Rucker explained that he was "reluctant to hire [her] because
of [her] education from India and [her] experience from India." J.A.
56. In 1992, Rucker sat in on a meeting between Bhella and one of
her subordinates. Rucker told Bhella that he was attending the meeting because Bhella "speak[s] broken English and I want to make sure
[the subordinate] understands." J.A. 56. On another occasion, Rucker
suggested that Bhellas concerns about another employee could be
caused by her language skills"maybe you speak broken English, he
doesnt understand you." J.A. 57.
In 1992 and 1993, then-CO Ralston had several telephone conversations about Bhella with Pers84 director Peck. At least twice, Peck
described Bhella as "a mad Sikh,"1 J.A. 296, and, on more than one
1
BHELLA v. ENGLAND
13
14
BHELLA v. ENGLAND
BHELLA v. ENGLAND
15
16
BHELLA v. ENGLAND
BHELLA v. ENGLAND
17
the actions about which Bhella complains. Bhella also notes that
Rucker twice described her as speaking "broken English." The only
other evidence of discriminatory attitudes at the Brig was the testimony that the budget officer and the head of security made fun of
Bhellas accent behind her back.3 While certainly inappropriate, this
evidence is not sufficiently connected to the actions taken against
Bhella to carry Bhellas burden of proving that the actions were motivated by discriminatory animus.
Even when we add to the mix the statements made by Bill Peck,
head of Pers84 in Washington, we still cannot find sufficient evidence
of discriminatory animus. According former CO Ralston, Peck
referred to Bhella as "a mad Sikh," J.A. 296, and as "an Indian causing trouble by making complaints," J.A. 297. These comments, however, were made as much as a year before any of the actions about
which Bhella complains, thus rendering the comments of little probative value on Bhellas hostile environment claim.4 See Birkbeck v.
Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir. 1994) (concluding
that statement made two years before a challenged action were irrelevant in age discrimination case: "This remoteness in time makes it
inappropriate to use Fennesseys statement as evidence of age discrimination.").
Accordingly, after carefully reviewing the record, we find that
Bhella failed to carry her burden of showing that any of the actions
about which she complained were caused by hostility on the part of
Brig officials to Bhellas race or national origin.5 The district court,
3
Bhella also points out that the budget officer once called Bhella a
"dumb bitch," and that the head of security once made the tasteless comment about wanting to bend Bhella over a table. While rude or even
crass, these comments in no way indicate that Bhellas treatment was
because of her race or national origin.
4
As we will explain later, however, Pecks trouble-making Indian comment is highly relevant to Bhellas retaliation claim.
5
Our conclusion on this point makes it unnecessary to consider the
governments argument that the actions about which Bhella complains
were not sufficiently severe or pervasive to support a hostile environment
claim.
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BHELLA v. ENGLAND
BHELLA v. ENGLAND
19
ment otherwise dispute that Bhellas multiple filings of EEO complaints satisfies the requirement that Bhella engaged in a "protected
activity." Likewise, the government does not suggest that it was
unaware of the complaints filed by Bhella. See Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)
(explaining that knowledge by the employer of the plaintiffs protected activity is "absolutely necessary" to establish causation in a
retaliation case). Instead, the government argues that Bhella failed to
prove that she suffered an adverse employment action or that any
such action was casually connected to Bhellas protected activity. We
disagree.
A.
We consider first the requirement that Bhella show that she suffered an adverse employment action, and we find that it was met. In
October 1993, the Brig detailed Bhella to Clinical Services, where she
languished for more than six months with essentially no job duties.
In our view, this action quite easily fits within the Supreme Courts
formulation of an adverse (or tangible) employment action: one that
"constitutes a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)
(emphasis added); see also Forkkio v. Powell, 306 F.3d 1127, 1131
(D.C. Cir. 2002) ("[R]eassignment with significantly different responsibilities . . . generally indicates an adverse action.") (internal quotation marks omitted).
In addition, while the existence of one adverse employment action
is enough to support Bhellas retaliation claim, we note that a reasonable jury could also conclude that Bhella suffered another adverse
employment action in connection with the April 1995 notice of proposed removal. Whether or not the notice of proposed removal itself
can be considered an adverse employment action,6 Bhella testified
6
There are cases from this circuit that appear to reach differing answers
to this question. Compare Von Gunten v. Maryland, 243 F.3d 858, 869
(4th Cir. 2001) (placing employee on administrative leave during investi-
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BHELLA v. ENGLAND
that when she returned to work after the Brig rescinded the proposed
removal, she was stripped of her "professional" duties and was instead
assigned primarily clerical duties. While the government disputes
Bhellas characterization of her duties upon her return, it does not dispute that Bhellas job duties changed when she came back to work.
There is enough of a factual dispute here to require a jury to determine whether the change of duties constituted an adverse employment
action.
B.
We likewise conclude that Bhellas evidence was sufficient to permit a reasonable jury to conclude that the government took the
adverse employment action in retaliation for Bhellas filing of the
EEO complaints. "Normally, very little evidence of a causal connection is required to establish a prima facie case. In fact, we have held
that merely the closeness in time between the filing of a discrimination charge and an employers firing an employee is sufficient to
make a prima facie case of causality." Tinsley v. First Union Natl
Bank, 155 F.3d 435, 443 (4th Cir. 1998) (citation and internal quotation marks omitted).
In this case, Bhella filed an EEO complaint at the end of May,
some four-and-a-half months before she was transferred to Clinical
Services. This time period between the protected activity and the
adverse employment action is somewhat longer than in other cases
where the causation requirement was satisfied simply by the temporal
gation of complaint lodged against employee is not an adverse employment action) with Karpel v. Inova Health Sys. Servs., 134 F.3d 1222,
1229 (4th Cir. 1998) (including in a listing of adverse employment
actions taken by the employer an investigation of the plaintiff that did not
result in a loss of pay or termination). Because Bhellas retaliation claim
is not dependent upon a determination that the notice of proposed
removal constitutes an adverse employment action, we need not resolve
the question. We likewise decline to consider whether any of the other
actions about which Bhella complains could be considered adverse
employment actions. The district court on remand is free to consider the
issue de novo.
BHELLA v. ENGLAND
21
proximity of the protected activity and the adverse action. See King
v. Rumsfeld, 328 F.3d 145, 151 & n.5 (4th Cir.) (concluding that tenweek period between protected activity and termination "gives rise to
a sufficient inference of causation to satisfy the prima facie requirement," but noting that the time period was "sufficiently long so as to
weaken significantly the inference of causation between the two
events"), cert. denied, 72 U.S.L.W. 3129 (Dec. 8, 2003); Williams v.
Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989) (causal connection established by evidence that complaint filed approximately three
months before plaintiff was terminated); see also Wells v. Colorado
Dept of Transp., 325 F.3d 1205, 1217 (10th Cir. 2003) ("A fivemonth gap between a protected activity and an adverse action would
ordinarily be too great a time lapse to support an inference of causation based on timing alone.").
We need not, however, decide whether an inference of causation
could be drawn solely from the temporal proximity, because Bhella
presented additional evidence tending to show that the transfer was a
reaction to the EEO complaints she filed. First, Sanford Seymour, the
director of the Brigs Correctional Services department, testified on
cross-examination that CO Bushong told him that Bhella was transferred to Clinical Services "as a resolution" for her EEO complaints.
J.A. 487. In addition, as the government acknowledges in its brief,
Bhella presented evidence showing that someone from Pers84, most
likely Bill Peck, agreed that Bhella should be detailed to Clinical Services. Given Pecks involvement in the transfer decision and Seymours testimony about the purpose behind the transfer, a jury could
reasonably conclude that it was the EEO complaints that led Peck to
describe Bhella as a trouble-making Indian and that the transfer to a
job with no duties was punishment for the complaints. We therefore
conclude that Bhellas direct and circumstantial evidence of causation, along with the temporal proximity of the complaint and the
transfer, is more than enough to permit a reasonable jury to conclude
that the Brig transferred Bhella to a job with almost no duties or
responsibilities because she filed EEO complaints.
The government, however, insists that the elimination of Bhellas
position as education supervisor was dictated by the efficiency
review, and that Bhella had no duties in Clinical Services because she
never wrote a position description for herself, as she was directed to
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BHELLA v. ENGLAND
23